[1997] KECA 247 (KLR)
The court found that the applicant's failure to rectify the error that led to the striking out of the earlier appeal—specifically, reliance on a defective decree—meant there was no sufficient basis to exercise discretion in favour of the applicant. The application for extension of time was therefore dismissed, as...
Source-derived case information.
- Citation
- [1997] KECA 247 (KLR)
- Parties
- Applicant: Coast Bus Company; Respondent: Gideon Ndeke Munyao (Suing as next of kin to Jonah Ndeke Munyao & Nzebi Munyao)
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Application 341 of 1996
- Procedural Posture
- Civil Application / Ruling on Application for Extension of Time to File Notice of Appeal and Record of Appeal
- Outcome
- application dismissed with costs
- Legal Topics
- Extension of Time, Appeals Process, Procedural Irregularities
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Coast Bus Company
Applicant
Gideon Ndeke Munyao (Suing as next of kin to Jonah Ndeke Munyao & Nzebi Munyao)
Respondent
Procedural Posture
Civil Application / Ruling on Application for Extension of Time to File Notice of Appeal and Record of Appeal
Legal Issues
- 1 Whether the applicant has provided sufficient grounds for the court to exercise its discretion to extend time to file and serve a notice of appeal and record of appeal.
- 2 Whether reliance on a defective decree can justify the grant of extension of time.
Ratio Decidendi
The court found that the applicant's failure to rectify the error that led to the striking out of the earlier appeal—specifically, reliance on a defective decree—meant there was no sufficient basis to exercise discretion in favour of the applicant. The application for extension of time was therefore dismissed, as the applicant had not demonstrated any new or valid grounds to warrant the court's intervention. The continued reliance on the same defective decree that previously rendered the appeal incompetent was fatal to the application.
Court Disposition
application dismissed with costs
Orders
- The application for extension of time is dismissed with costs.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: KWACH, J.A. (IN CHAMBERS)
CIVIL APPLICATION NO. NAI. 341 OF 1996
BETWEEN
COAST BUS COMPANY................................................APPLICANT
AND
GIDEON NDEKE MUNYAO (Suing as next of kin to
JONAH NDEKE MUNYAO & NZEBI MUNYAO)............RESPONDENT
(An Application for Extension of Time to file Notice of Appeal and Record of Appeal out of time from the Judgment of the High Court of Kenya at Machakos (Justice Osiemo) dated 17th March, 1993
in
H.C.C.C. NO. 96 OF 1996 CONSOLIDATED WITH NO. 97 OF 1993 ********************************** R U L I N G
This is an application under rule 4 of the Court of Appeal Rules for extension of time to file and serve a Notice of Appeal and to file an appeal. The decision against which the applicant wishes to appeal was given by Osiemo, J. on 17th March, 1993. An earlier appeal filed by the applicant was struck out by this Court on 5th November, 1996 on the ground that the record of appeal contained a defective copy of the decree appealed against. The date on the decree was at variance with the date of the judgment.
The applicant has now brought this application although its Advocates on record have taken no steps yet to rectify the error which rendered the earlier appeal incompetent. The application is still based on the defective decree. I cannot see on what basis I can exercise my discretion in favour of the applicant. The application is dismissed with costs.
Dated and delivered at Nairobi this 22nd day of September, 1997. R. O. KWACH............................JUDGE OF APPEAL